Rights and wrongs
Jo Lote
September 18, 2004
Photos by Simon Song
To say that Basil Fernando "fled'' Sri Lanka in 1989 is to understate his commitment to human rights. At the time he was a young criminal lawyer in Colombo battling a corrupt police force resentful of his unflinching cross-examinations in court.
Then came chilling news. His name was on a list of people targeted by government death squads operating against the radical Janatha Vimukthi Peramuna (JVP), a Sinhalese rebel party involved in a deadly tit-for-tat war with the authorities. Four prominent lawyers had already been shot dead and a whispering campaign was painting Fernando as a JVP supporter - a deadly accusation at a time when the government counter-terror campaign was claiming thousands of lives through summary executions.
For the sake of his wife, then expecting their only child, he laid low. A Bar Association conference drew him to Hong Kong, a good opportunity to make himself scarce; when he made plans to return to Sri Lanka he was strongly advised by colleagues to stay away.
It is 15 years to the day since he left Colombo when we sit down for lunch at Jashan, an Indian restaurant on Hollywood Road in Central. The personal threat behind him, as executive director of the Asian Human Rights Commission (AHRC) and a winner of the Kwangju Prize for Human Rights, Fernando has devoted his life to others at risk.
A slightly built man with a shock of silver hair and a quiet manner, Fernando emerged from the lawlessness of Sri Lanka to recognise rule of law as the most important element underpinning human rights, and a guiding light for the AHRC.
In his early days in Hong Kong, Fernando worked as an appeals counsel for Vietnamese refugees through a United Nations-sponsored project. By 1992, he was in charge of the human rights investigation unit of the UN Transitional Authority in Cambodia (UNTAC), one of the largest missions in UN history on which more than US$2 billion (HK$15.6 billion) was spent while 25,000 UN officers tried to guide Cambodia from the chaos of civil war, revolution and communist rule into a democratic transition. In hindsight he describes UNTAC as a "missed opportunity''.
"People didn't understand the relationship between the administration of justice and human rights,'' he says, noting that for all the violations of rights that occurred in Cambodia, especially during the genocidal Pol Pot era, the UN was unable to bring perpetrators to justice because there simply was no legal system in place at the time.
"The deepest realisations I have had about human rights come from what happened to those [Cambodian] people ... and now the United States is creating another Cambodia out of Iraq,'' he says.
The world has forgotten what it learned from Cambodia and other tragedies, he says. The relentless years of war and Khmer Rouge tyranny drove Cambodia's social system "into the Stone Age''. The same could be happening as a result of the chaos in Iraq.
"If you disintegrate a country's processes - its judicial and administrative systems - you drive them into a legal and democratic Stone Age and there is no easy return,'' Fernando says. "I don't think [President George W] Bush means to do this but much more damage is being caused than was ever intended.
"Democracy takes time to develop, it took hundreds of years to emerge in any real and lasting form in Europe. You cannot just impose and enforce a constitution - that was tried in Cambodia - when you bypass the processes that take people there they [the laws] become meaningless pieces of paper.''
Lunch arrives to divert us briefly from the matters at hand. Tender rogan josh, mutton being Fernando's preference, chicken tikka masala, a lentil curry and a baghare baigan, eggplant cooked in peanuts, sesame seeds and spices, a nod to the lone vegetarian at the table.
Fernando continues: "Human rights cannot be a bureaucratic job where somebody gives plans to the government and says `implement this'. The Paris Agreement was the basis of the exercise in Cambodia but it included nothing on administration of justice - the person who drafted it had never looked into the situation in Cambodia - it was drafted on the general terms of a peace agreement''.
He underlines his argument for liberal democratic systems of justice with anecdotes. Some, like witnessing a 13-year-old Cambodian boy, already detained for five years for petty theft, being handed the maximum 10-year sentence, are heartbreaking.
Others are amusing: "My job with UNTAC was to liaise with the Khmer Rouge minister of justice and I had a plan that he was to put in place. But there were concepts involved that he could not grasp. During one of our meetings I mentioned to him that there must be some independence of judiciary. His reply was: `Don't worry Mr Fernando, I will make them independent'.''
His dark eyes flash with humour but never too long to distract from his message. "Today you go to a country [Cambodia] and after such a massive intervention the penal code has only 40 offences, with a set of judges who do not have education up to Grade 10, where there is no police system. How is democracy going to function? How can we demand a fair trial when there is no system of courts that is in any sense credible? That is the sort of fundamental issue we are facing in many countries in Asia.''
It seems he was ahead of his time when he wrote reports on these issues for UNTAC and his ideas drew little response. His most recent publication is a collection of essays on law and human rights entitled The Right To Speak Loudly and, in his downtime, he writes poetry.
He continues to be outspoken at international conferences. Last year at the Asia Consultation on the Vienna Declaration - the document that was drafted at the 1993 UN World Conference on Human Rights - he declared that human rights organisations in Asia were dominated by the affluent and middle class to whom the poor did not really matter, that these organisations had failed to seriously investigate human rights violations due to poor strategies, not lack of resources, and dismissed the work of those that ignore problems relating to the rule of law as being irrelevant.
Another source of inspiration, Fernando says, are the lessons he learned as a child growing up in a fishing village outside Colombo. He came to appreciate that to understand people you have to understand their environment. He attended a local school and then St Anthony's College in Wattala district for secondary education.
As a young man he considered becoming a religious brother and trained for two years in Malaysia before returning to Colombo to study law at Aquinas University College where he constantly challenged lecturers about the gap between textbook law and the realities of the Sri Lankan judiciary.
Fernando, 59, eats with an earthy refinement, scooping his food with the warm naan rather than a cold fork. It's this "hands-on'' approach to his work and his determination to better reflect human rights abuses that saw him leave the distant, bureaucratic grappling of his high-level UN briefs. He was appointed to the AHRC in 1994 and with his input its mission began to change.
It was set up in 1984 with the mandate that "high-standing figures'' would visit Asian countries in difficulty and report on their problems, the aim being to build international support on crucial issues. Its direction has changed a lot and it now uses a "folk school'' mode of action, concentrating its work at the grass-roots level, working with local organisations that are focused on human rights, campaigning for democracy and whistle-blowing human rights violations on a day-to-day basis through the "urgent appeals'' system on its website.
Fernando refuses many more invitations to attend international forums than he accepts, saying that he prefers to stay in direct contact with the people who most need his skills.
At present the coalition is mainly active in Sri Lanka, Nepal, Pakistan, Thailand, Cambodia and several places in India but in almost all countries it is doing something - like conducting training programmes for judges and lawyers in China, although the officials still need government permission to attend.
Many sceptics would be surprised, he says, at the openness and eagerness of mainland judges to learn more about the rule of law. "There is serious internal debate going on around matters such as the principles of fair trial,'' he says, and some high-level justices are writing papers, "biding their time'' and waiting for the opportunity to instigate positive changes to the mainland justice system.
Conversely, he warns that Hong Kong needs to be vigilant about possible changes to its legislation, especially with regard to Article 23.
When national security is divorced from democracy, he says, it can be used to erode civil and political rights.
"In Hong Kong and Korea, the main instrument being used to displace democracy is national security laws. We live in dangerous times and the introduction of security, or so-called anti-terrorism, laws have the potential to paralyse administrative and justice systems.''
Democracy was a fragile thing and could quickly be undone: "In Sri Lanka we never dreamed that we would live in anything else but a democracy,'' until a delicate coalition government broke up in 1975 ushering in a period of continuing instability. "Now it is one of the most violent places on earth.''
Fernando believes that terrorism, per se, is not the greatest threat to Asia, it is rather the way the issue of terrorism is handled that is the threat.
He uses Pakistan as a most blatant example: While it is seen as an indispensable ally in the "war against terror'', it has dismantled key elements of its democracy, including independence of the judiciary.
Communicating the importance of rule of law as a means to protect people from all forms of repression is his passion and the AHRC has chosen to focus largely on the issue of torture as the entry point to this ideology.
"For example, we spend more time criticising common police practices [such as wrongful detainment and torture] than any other rights organisation because it so clearly shows how a whole justice system can be sabotaged by them. In Pakistan you can actually buy arrest warrants from the police while in Sri Lanka you only need a signature [from any police officer] for a burial certificate.''
"In the late 1980s in Sri Lanka, 30,000-40,000 people disappeared without trace,'' he says recalling the counter-terror campaign against the JVP.
The issue of torture is back on the front burner, he says, because of abuses by the US at Abu Ghraib prison in Iraq.
"Sadly, the idea that you can torture or kill people in an emergency situation is still common, as is the double standard that countries such as the US and Israel live by. They are forced by their own constitutions to combat such abuses but they freely commit them, or find others to carry them out, on their own minorities or in weaker countries. What the US soldiers did in Iraq was nothing new - it's just that this time they had to do it themselves and they were unlucky that someone took a camera along.''
Fernando believes the situation in Iraq will have long-term negative consequences for the US. "Anti-terrorism has no positive direction. Friends and enemies can no longer tell each other apart - anti-democrats seem to be democracy's best friends,'' he says. "We must not allow anti-terrorism to become a dominant world ideology.''
Unfortunately, the ripples from Abu Ghraib are even affecting the AHRC's work.
"We go into countries and try to implement changes to their justice systems, to circumvent torture, and they reply: What are you talking about? The Americans are doing this.''
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